United States Court of Appeals

For the First Circuit

No. 11-2195

UNITED STATES OF AMERICA,

Appellee,

v.

ROLDY FRANCOIS,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

[Hon. William E. Smith, U.S. District Judge]

Before

Howard, Ripple, and Lipez, *

Circuit Judges.

Michelle Menken, with whom Kerry Haberlin was on brief, for

appellant.

Donald C. Lockhart, Assistant United States Attorney, with

whom Peter F. Neronha, United States Attorney, was on brief for

appellee.

April 22, 2013

Of the Seventh Circuit, sitting by designation. *
LIPEZ, Circuit Judge. Following a three-day trial, a

jury convicted defendant-appellant Roldy Francois ("Francois") on

four counts of possessing firearms as a convicted felon, one count

of possessing a firearm with an obliterated serial number, and

twelve counts stemming from his use of a stolen identity to

purchase those firearms. Following his conviction, the district

court sentenced Francois to a term of 164 months. Francois

appeals, asserting that the district court (1) abused its

discretion when it denied his motion for a third court-appointed

attorney; (2) failed to adequately warn him about the consequences

of proceeding pro se; (3) erred in instructing the jury on the use

of flight evidence; (4) abused its discretion in failing to conduct

an evidentiary hearing on his motion to suppress. Francois also

claims that his sentences on counts 10-13 exceed the statutory

maximum.

For the reasons explained below, we affirm Francois's

conviction. The government agrees, correctly, that the sentences

on counts 10-13 do exceed the statutory maximum. Hence, we remand

for resentencing.

I. Background

In reviewing Francois's conviction, we consider the facts

established at trial in the light most favorable to the jury's

verdict. United States v. Gómez-Rosario, 418 F.3d 90, 93 (1st Cir.

2005).

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A. Facts

On March 27, 2009, a young government employee named

Efrain Baez reported that a briefcase containing his social

security card and birth certificate had been stolen. For more than

a year, Baez knew nothing about the fate of his stolen documents.

Unbeknownst to Baez, less than a month after his documents were

stolen, his identity would be appropriated by Roldy Francois, a

convicted felon living in Rhode Island.

On April 23, 2009, the state of Florida issued Francois

a driver's license in Baez's name but bearing a picture of

Francois. Francois proceeded to use Baez's identity on at least

four occasions to purchase guns from Dave's Guns, a firearms dealer

in Rhode Island. When purchasing each of these firearms, Francois

identified himself as "Efrain Baez" on ATF Form 4473 and certified

that he had never been convicted of a felony. Evidence in the 1

record indicates that Francois also identified himself as Efrain

Baez when he was cited for speeding, that he used Baez's identity

ATF Form 4473, or a "Firearms Transfer Record," is a form 1

filled out in the course of an over-the-counter purchase of a

firearm. The form requires the purchaser to provide identity

information and allows the dealer to initiate a National Instant

Criminal Background Check System search. The Gun Control Act of

1968, 18 U.S.C. §§ 921-930, requires gun dealers to keep records of

the information collected by means of ATF Form 4473 for 20 years

and make them available for inspection to ATF agents upon request.

See United States v. Lewis, 517 F.3d 20, 22 n.1 (1st Cir. 2008);

Borchart Rifle Corp. v. Cook, 684 F.3d 1037, 1039 (10th Cir. 2012).

-3-
at a firing range, and that he assumed Baez's identity in some

social situations.

Francois continued to use Baez's identity with impunity

until early 2010, when an ill-fated attempt to dupe the police put

an end to his charade. In February 2010, two of the guns Francois

had illegally purchased at Dave's Guns were stolen from his car. 

On February 16, 2010, Francois went to the Providence Police

Department accompanied by his girlfriend and his private attorney

to report the theft. When he arrived at the station, Francois

identified himself as "Efrain Baez." 

Unfortunately for Francois, the detective assigned to

take his report had encountered Francois in the course of

Francois's previous criminal activities. Detective Maurice Green

("Detective Green") testified at trial that he recognized Francois

"as soon as he walked in the door," but could not immediately place

him. Green also thought it was "odd" that someone would bring an

attorney with him to the station to report a crime, and his

suspicions were further aroused because "there was something very

wrong with [Francois's] entire story." Nevertheless, Green took

Francois's report, and Francois left the station without incident.

Convinced that he had encountered Francois before,

Detective Green reviewed his old case files and discovered that the

man who had identified himself as Efrain Baez was, in fact, Roldy

Francois. With this information, Detective Green immediately

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contacted Immigration and Customs Enforcement ("ICE") and the

Bureau of Alcohol, Tobacco, Firearms, and Explosives ("ATF").

Law enforcement agents initially attempted to apprehend

Francois at 148 Hudson Street in Providence, the address Francois

had given Detective Green during their February 16 interview. Upon

arrival at that address, however, the police were told by

Francois's girlfriend that he had moved and left no forwarding

address. After this initial setback, law enforcement officers were

unable to locate Francois for several weeks until they received a

tip that Francois was residing at 44 Taylor Street in Providence. 

Early in the morning of March 16, 2010, a team of fully

armed and uniformed Providence police officers, ATF agents, and

United States Marshals approached the three-story apartment

building at 44 Taylor Street. The Marshals knocked on the exterior

door, identified themselves as law enforcement officers, and told

the residents who answered that they were there to arrest Francois.

When Deputy Officer Brian McDonald ("Officer McDonald") showed the

residents a photograph of Francois, one resident pointed his finger

toward the ceiling and mouthed the word "up." 

Taking this to mean Francois was upstairs, Officer

McDonald proceeded to the third floor, where he observed an opening

in the ceiling, which revealed a small, unfinished attic.

Suspecting that Francois was hiding in the attic, Officer McDonald

identified himself as a U.S. Marshal and announced that he had a

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warrant for the arrest of Roldy Francois, also known as Efrain

Baez. In response, Francois moved toward the opening, allowing

Officer McDonald to confirm visually that the man in the attic was

indeed Francois. Officer McDonald observed Francois lying prone in

the attic clutching a dark, semi-automatic handgun to his chest. 

At that point, Francois announced "that he was not going to jail,

that he was in possession of a gun and no attempts should be made

to remove him from the attic."

Officer McDonald quickly alerted his fellow law

enforcement agents that Francios was armed, and called for a backup Special Weapons and Tactics ("SWAT") team. A tense, six-hour

stand-off between Francois and law enforcement ensued. Several

times during the stand-off, Francois threatened to shoot either one

of the officers or himself. Finally, late in the afternoon,

Francois surrendered peacefully and was taken into custody.

B. Pre-Trial Proceedings

A federal grand jury returned a seventeen-count

indictment, charging Francois with four counts of being a felon in

possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and

924(a)(2), one count of being in possession of a firearm with an

obliterated serial number in violation of 18 U.S.C. §§ 922(k) and

924(a)(1)(B), four counts of making false statements in the

purchase of firearms in violation of 18 U.S.C. §§ 922(a)(6) and

924(a)(2), four counts of possession of an identity document with

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intent to defraud the United States in violation of 18 U.S.C. §§

1028(a)(4) and (b)(1), and four counts of using an identification

document with intent to defraud the United States in violation of

18 U.S.C. §§ 1028A(a)(1).

From the outset, Francois's relationships with his court

appointed attorneys were acrimonious. The court initially

appointed Attorney Mary June Ciresi ("Ciresi") to represent

Francois, but relations between the two deteriorated quickly. 

After only a few weeks of representation, Francois filed a

complaint against Ciresi with the disciplinary committee of the

Rhode Island bar, and Ciresi moved to withdraw. After a hearing,

the district court granted the motion to withdraw, and appointed

Francois a second attorney, William Dimitri ("Dimitri").

Equally unimpressed with Dimitri, Francois asked the

court in August to appoint him yet a third attorney. At the

hearing on his motion for new appointed counsel, Francois stated

that he and Dimitri were having "a problem of communication."

Francois explained further that "[t]his is my first time in the

federal system. I'm not quite understanding properly the whole

scenario of the sentencing guidelines." Francois also accused

Dimitri of focusing exclusively on "the worst case scenario."

The district court disagreed with Francois's

characterization of his relationship with Dimitri. In rejecting

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Francois's motion for a third appointed counsel, the court

reasoned:

I don't see any substantive disagreement here. It just

seems to me like he's giving you advice, it's been pretty

good advice, and you haven't really liked the advice . .

. I get the sense you think somebody else is going to

give you different advice or file different things for

you. I just don't think that's going to happen. 

Two months later, Francois again moved to terminate his

relationship with Dimitri. In support of this motion, Francois

sent the court a letter addressed to Dimitri in which Francois

stated:

I [] feel like you are losing faith in this case perhaps

because you can't win this case. . . . You are proceeding

to handle my case as one that will end up as a guilty

plea. . . . You refuse to put in motions for anything. .

. . You refuse to accept my calls. . . . [Y]ou are taking

me as another body to be delivered to the federal system. 

. . . [A]s of now you are fired. 

At the October hearing on this second motion, Dimitri

told the court that Francois "want[ed] to kill the messenger"

rather than accept the truth of his circumstances. Dimitri

asserted that he had met with Francois at least four times, taken

many phone calls from Francois and his wife, and conducted research

on the motions that Francois had asked him to file to confirm his

initial suspicion that they had no merit. The district court again

concluded that Francois was not entitled to a third court-appointed

attorney, explaining that "Mr. Dimitri is one of the most able

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criminal defense attorneys in the State of Rhode Island . . . You

don't like what [Dimitri's] opinion indicates. But that's not a

compelling reason for me to grant your motion to change counsel." 

Nevertheless, Francois continued to voice his

dissatisfaction with Dimitri and continued his attempts to file pro

se motions with the court. Shortly before jury impanelment,

Francois urged the court to allow him to proceed pro se. After

informing Francois that he had a right to represent himself, the

court told Francois that:

I have an obligation to tell you that I think that is a

terrible idea, and I think you would be making a

catastrophic mistake to -- by representing yourself in

this trial. But I can't stop you from doing it. All I

can do is tell you that I think it would be a very bad

idea, and it would be very detrimental to your interests

in receiving a fair trial in this case. . . . One way or

the other we're going to impanel the jury here this

afternoon. 

After reiterating that it would be a "very bad decision" for

Francois to represent himself, the court acquiesced to Francois

proceeding pro se and appointed Dimitri to act as standby counsel. 

The court advised Francois that he could inform the court at any

moment of his wish to revoke his waiver, and Dimitri would step in

as his attorney. The court also cautioned Francois that he would

receive no extensions of time, and that he would need to be

prepared for trial 20 days hence.

Francois filed several pre-trial motions pro se,

including a motion to suppress the statements he made to Detective

-9-
Green during their interview at the Providence Police Station on

February 16, 2010, in which Francois had identified himself falsely

as Efrain Baez. Francois argued that the statements he made to

Detective Green should be suppressed on a theory that the interview

was a custodial interrogation requiring a Miranda warning. After

a hearing, the district court denied both Francois's motion to

suppress these statements and his further request for an

evidentiary hearing to determine whether or not he was objectively

reasonable in feeling he was not free to leave the interview.

C. Trial

At trial, Francois initially appeared pro se, delivering

his own opening statement and making objections to the government's

direct examination of its first witness. In fact, one of

Francois's three objections to this witness's testimony was

sustained. After beginning his cross-examination of the witness,

however, Francois decided that he could no longer continue to

represent himself and accepted representation by Dimitri. Dimitri

then stepped in and represented Francois for the rest of the

proceeding. At a later point in the trial, Francois asked the

court if he could once again proceed pro se, but the court denied

that motion.

Before the jury began its deliberations, and over the

objection of Francois, the district court provided the jury with

the following instruction on how to use evidence of flight:

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Now, intentional flight by a defendant after he is

accused of a crime for which he is now on trial may be

considered by you in light of all the other evidence in

the case. The burden is upon the Government to prove

intentional flight. Intentional flight after the

defendant is accused of a crime is not alone sufficient

to conclude that he is guilty. Flight does not create a

presumption of guilt. At most, it may provide the basis

for an inference of consciousness of guilt. But flight

may not always reflect feelings of guilt. Moreover,

feelings of guilt, which are present in many innocent

people, do not necessarily reflect actual guilt. In your

consideration of the evidence of flight, you should

consider that there may be reasons for the Defendant's

actions that are fully consistent with innocence. It is

up to you as members of the jury to determine whether or

not evidence of the intentional flight shows a

consciousness of guilt and the weight or significance to

be attached to any such evidence.

The jury returned a verdict convicting Francois on all

seventeen counts of the indictment. Following his conviction, the

district court sentenced Francois to a total of 164 months

imprisonment. 

II. Francois's Sixth Amendment Claims

Francois advances two interrelated Sixth Amendment

claims. First, Francois argues that his Sixth Amendment right to

effective assistance of counsel was violated when the court denied

his motion for new appointed counsel and thereby forced Francois

into what he characterizes as a "Hobson's Choice" between

proceeding with ineffective counsel or proceeding pro se. Second,

Francois argues that his decision to waive his right to counsel was

not intelligent because the court failed to warn him about the

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consequences of proceeding pro se as required by the Supreme

Court's opinion in Faretta v. California, 422 U.S. 806 (1975).

A. Francois's Motion for New Appointed Counsel

Though the right to counsel is fundamental, the right of

an indigent criminal defendant to demand new appointed counsel is

not unlimited. "[I]n appropriate circumstances, a trial court may

force a defendant to choose between proceeding to trial with an

unwanted attorney and representing himself." United States v.

Proctor, 166 F.3d 396, 402 (1st Cir. 1999). In reviewing whether

it was appropriate for the trial court to impose that choice, we

rely on the three factors laid out in United States v. Allen, 789

F.2d 90, 92 (1st Cir. 1986): "(1) the timeliness of the motion; (2)

the adequacy of the court's inquiry into the defendant's complaint;

and (3) whether the conflict between the defendant and his counsel

was so great that it resulted in a total lack of communication

preventing an adequate defense." United States v. Hicks, 531 F.3d

49, 54-55 (1st Cir. 2008). Our review is for abuse of discretion. 

United States v. Meyers, 294 F.3d 203, 207 (1st Cir. 2002).

Because Francois's motions for new appointed counsel were

all timely, we begin with the second prong of the Allen analysis --

the adequacy of the inquiry into Francois's complaints about

Dimitri. The court conducted two pre-trial hearings on Francois's

motions for new appointed counsel and issued a separate written

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ruling following each hearing . In each hearing and in each order, 2

the district court carefully examined Francois's complaints and

concluded that the source of Francois's disappointment with Dimitri

was not any lack of competence on Dimitri's part, but rather was

Francois's refusal to accept Dimitri's accurate assessment of

Francois's predicament. The district court's inquiry was more than

adequate. Indeed, the district court endured Francois's repeated

complaints with commendable patience.

Moving to the third prong of the Allen inquiry, we assess

whether there is evidence on the record that the attorney-client

relationship had so deteriorated that there existed a "total lack

of communication preventing an adequate defense." Allen, 789 F.2d

at 92. The pre-trial hearing transcripts leave little doubt that

Francois did not like Dimitri's legal opinions or tactics. There

is no evidence, however, that the parties were not communicating

with each other or that Dimitri was in any way neglecting his

responsibilities. In fact, at the January 2011 hearing, both

parties made it clear that they had been communicating regularly. 

Dimitri told the court that he had already met with Francois in

person "a minimum of nine to ten times" in addition to many phone

conversations. Francois estimated that they had met "four times"

in person and described several phone conversations. Indeed,

The court also conducted a hearing on Francois's motion to 2

replace his first appointed counsel, Ciresi.

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Francois's litany of complaints about Dimitri all belie the fact

that the pair were in frequent communication during the pre-trial

period. 

Francois simply did not like what he was hearing during

those communications. Specifically, he did not like hearing that

the motions he wanted Dimitri to file were frivolous; that he would

almost certainly be convicted and should accept a plea bargain; and

that the "worst case scenario" sentence he could receive if

convicted would be severe. In other words, Francois's complaints

reflect his disdain for Dimitri's advice, but none of Francois's

complaints indicate that the two were so unable to communicate that

Dimitri could not present an "adequate defense" on Francois's

behalf. See United States v. Pierce, 60 F.3d 886, 891 (1st Cir.

1995) (finding no irreversible breakdown where defendant and

attorney had "some appreciation for the other's opinions and

sensibilities"); United States v. Machor, 879 F.2d 945, 952 (1st

Cir. 1989) (noting that in reviewing the third prong of the Allen

analysis, "one should bear in mind that the right to counsel does

not involve the right to a 'meaningful relationship' between an

accused and his counsel") (quoting Morris v. Slappy, 461 U.S. 1, 14

(1983)).

For these reasons, we conclude that the district court

did not abuse its discretion in denying Francois's motions to

replace Dimitri with new appointed counsel.

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B. Francois's Waiver Of His Right to Counsel

"Because of the disadvantages to a defendant that inure

from pro se representation, a defendant must 'knowingly and

intelligently' waive his right to counsel before he may be

permitted to proceed pro se." United States v. Kneeland, 148 F.3d

6, 11 (1st Cir. 1998) (quoting Johnson v. Zerbst, 304 U.S. 458,

464-65 (1938)). As such, when a defendant seeks to proceed pro se,

the trial judge must determine whether the defendant's waiver is

"intelligent and competent." Proctor, 166 F.3d at 402. In

discharging this responsibility, the trial judge must keep in mind

the strong presumption against waiver and "'investigate as long and

as thoroughly as the circumstances of the case before him demand.'"

Id. (quoting Von Moltke v. Gillies, 332 U.S. 708, 723-24 (1948)). 

As part of the inquiry into whether the defendant's waiver is

intelligent, the trial judge must warn the defendant "of the

dangers and disadvantages of self-representation, so that the

record will establish that '[the defendant] knows what he is doing

and his choice is made with eyes open.'"Id. at 401 (quoting

Faretta, 422 U.S. at 835); see also Maynard v. Meachum, 545 F.2d

273, 279 (1st Cir. 1976) ("[T]he accused should have a general

appreciation of the seriousness of the charge and of the penalties

-15-
he may be exposed to before deciding to take a chance on his own

skill.").3

Francois alleges that his decision to proceed pro se was

not made "intelligently" because the court failed to adequately

warn him of the dangers of proceeding pro se. Indeed, the

government conceded at oral argument that "ideally" the court would

have been more detailed in its warning. Although the court did

tell Francois that self-representation would be a "terrible idea"

and a "catastrophic mistake," the court did not go beyond these

dire generalizations to give a specific example of the consequences

of self-representation that might enhance a layman's understanding

of the significance of the decision to proceed without counsel. 

For example, the court did not explain that the defendant might

have defenses that only a lawyer would appreciate. Phrases like

"catastrophic mistake" do not convey in concrete terms the

sentencing range Francois would likely face if he were convicted,

and the judge did not explain that he could not give advice or

guidance during the trial.

Francois's argument fails to appreciate, however, that

even where the court's Faretta warning is less thorough than it

might be, we may nevertheless affirm a district court's decision to

allow a defendant to proceed pro se if "the record amply supports

This warning is sometimes called a "Faretta warning" or a

3

"Faretta inquiry" after the Supreme Court's opinion in Faretta v.

California, 422 U.S. 806 (1975).

-16-
the lower court's conclusion that [the defendant] was fully aware

of the disadvantages he would face as a pro se defendant."

Kneeland, 148 F.3d at 12 (considering defendant's background as a

disbarred attorney and his conduct at trial in affirming that

defendant's waiver of his right to counsel was intelligently made);

see also United States v. LaBare, 191 F.3d 60, 68 (1st Cir. 1999)

(considering defendant's experience as a defendant in previous

criminal trials as a factor indicating his decision to proceed pro

se was intelligently made); Maynard, 545 F.2d at 277 (determining

that "the absence of explicit bench warnings or a colloquy on the

record" does not compel a conclusion that defendant's waiver was

invalid).

We are satisfied on this record that Francois understood

the trial process and was fully aware of the gravity of the charges

facing him. Throughout the lengthy pre-trial proceedings, Francois

was actively involved in preparing for his own defense. At the

various hearings on his many pre-trial motions, the court engaged

in several lengthy discussions with Francois. During each of these

discussions, Francois was lucid, articulate, and engaged. 

Moreover, the arguments Francois made on his own behalf demonstrate

that he had conducted extensive legal research of his own accord

and was fully aware of the nature of the charges against him.

Furthermore, while the court did not explicitly advise

Francois of the consequences he would face if convicted, Francois

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cannot claim that he was ignorant of the potential punishment he

faced. The record of the pre-trial proceedings clearly shows that

Francois received advice regarding potential sentences from

Dimitri. Indeed, Francois's distress at Dimitri's assessment of

the "worst case scenario" seems to have been a significant source

of his dissatisfaction with Dimitri. Moreover, the court did

explain to Francois that the federal sentencing calculations were

complicated and reiterated several times to Francois that it was

critical that he give careful consideration to his attorney's

assessment of the possible sentences he could face, rather than

merely attacking his attorney for being the messenger of bad news.

For these reasons, we conclude that Francois's waiver of

his right to counsel was "intelligent and knowing" and the district

court did not err in allowing him to proceed pro se.

III. Francois's Additional Challenges to His Conviction

Francois advances two additional arguments: that the

district court abused its discretion in giving the jury a

consciousness-of-flight instruction, and that the district court

abused its discretion in denying an evidentiary hearing on

Francois's pro se motion to suppress the statements he made to

Detective Green in their initial encounter at the police station. 

We consider these arguments in turn.

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A. Flight Instruction

"Given an adequate factual predicate . . . evidence of a

criminal defendant's flight is generally thought to be probative of

his or her consciousness of guilt." United States v. Benedetti, 433

F.3d 111, 116 (1st Cir. 2005). Where such an "adequate factual

predicate exists," the district court may instruct the jury that

evidence of flight may indicate a defendant's consciousness of

guilt. See United States v. Camilo Montoya, 917 F.2d 680, 683 (1st

Cir. 1990); United States v. Hyson, 721 F.2d 856, 864-65 (1st Cir.

1983). Our review of the trial court's decision to do so is

deferential, and "[a] district court is afforded considerable

leeway when determining whether evidence of a defendant's flight is

accompanied by a sufficient factual predicate." Bendetti, 433 F.3d

at 116.

Francois's claim that there was an inadequate factual

predicate for the flight instruction borders on the frivolous. The

government presented an abundance of evidence supporting the

inference that Francois fled to the attic because he was conscious

of his own guilt. On the day of his arrest, Francois knew that the

police were looking for him because -- by his own admission -– he

knew that Detective Green had recognized him when he used a stolen

identity to report the theft of his illegally purchased guns.

Within days of his interview with Detective Green, Francois had

packed his belongings and left the apartment where he had been

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living with no forwarding address. When a fully uniformed and

armed team of officers finally found Francois at 44 Park Street and

announced their intent to arrest him, the Marshals discovered him

lying prone with a semi-automatic handgun in a small, unfinished

attic that was accessible only by standing on a chair and hoisting

oneself through a hole in the ceiling. Such efforts at concealment

and evasion are tantamount to flight for the purpose of

consciousness-of-guilt instructions. See United States v. Meadows,

571 F.3d 131, 146 (1st Cir. 2009) (upholding admission of

defendant's flight attempt during a traffic stop because "the fact

that [defendant]'s flight was neither successful nor lengthy is

immaterial to the fact that he chose to flee"); see also United

States v. Wright, 392 F.3d 1269, 1277 (11th Cir. 2004) ("[E]vidence

of resisting arrest is probative of [the defendant]'s consciousness

of guilt."); United States v. Pallais, 921 F.2d 684, 689-90 (7th

Cir. 1990) (finding testimony indicating that when police sought to

arrest defendant in his home he hid from them in a crawlspace was

admissible to show consciousness of guilt).

B. The Court's Denial of an Evidentiary Hearing on Francois's

Motion to Suppress

Francois's argument that the court should have conducted

an evidentiary hearing on his motion to suppress is similarly

hopeless. "A criminal defendant does not have a presumptive right

to an evidentiary hearing on a motion to suppress." United States

v. D'Andrea, 648 F.3d 1, 5 (1st Cir. 2011). Rather, "[a] hearing

-20-
is required only if the movant makes a sufficient threshold showing

that material facts are in doubt or dispute, and that such facts

cannot reliably be resolved on a paper record. Most importantly,

the defendant must show that there are factual disputes which, if

resolved in his favor, would entitle him to the requested relief."

United States v. Staula, 80 F.3d 596, 603 (1st Cir. 1996)

(citations omitted). Our review is for abuse of discretion. 

United States v. Farlow, 681 F.3d 15, 18 (1st Cir. 2012).

Arguing that he should have been granted an evidentiary

hearing on his motion to suppress the statements he made to

Detective Green during their February 16 interview, Francois claims

that there was a factual dispute over whether Detective Green

separated Francois and his girlfriend at some point during their

interview. Under Francois's theory, resolving this factual 4

dispute in his favor would compel the court to conclude that he was

objectively reasonable in believing he was not free to end his

interview with Detective Green and thus was in custody for Miranda

purposes. See Stansbury v. California, 511 U.S. 318, 323 (1994)

(whether or not custody exists for Miranda purposes "depends on the

objective circumstances of the interrogation, not on the subjective

In his brief, Francois claims that the government also 4

disputes the fact that Detective Green spoke to his attorney in the

hallway while Francois remained in the interview room. As the

government assented to this fact during the suppression hearing and

assents to it again on appeal, it is not actually in dispute. Even

if it were it is not material on the facts of this case.

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views harbored by either the interrogating officers or the person

being questioned"). 

Unfortunately for Francois, his argument is a nonstarter. Even if this factual dispute were resolved in his favor,

he would still have been objectively unreasonable in believing he

was in custody. Francois came to the police station on February 16

of his own volition to report that he was the victim of a crime. 

He was not physically restrained nor told that he was not free to

leave. See United States v. Infante, 701 F.3d 386, 396 (1st Cir. 

2012) ("[W]hether an individual is in Miranda custody depends on

whether there is a 'restraint on freedom of movement of the degree

associated with a formal arrest.'" (quoting Maryland v. Shatzer,

130 S.Ct. 1213, 1224 (2010))). He was never questioned without

his attorney present, and he was never yelled at, threatened, or

badgered. See United States v. Guerrier, 669 F.3d 1, 6 (1st Cir.

2004) (noting that the fact that "[n]o one screamed at [defendant],

badgered him for answers, or menaced him in any way" indicated that

interaction was not a custodial interrogation). At the conclusion

of the interview, Francois casually left the police station a free

man. In sum, this scenario does not even come close to the type of

custodial interrogation that we have found to require a Miranda

warning. Adding a private interview between Detective Green and

Francois's girlfriend to the mix does not change that outcome.

-22-
The district court did not abuse its discretion in

declining to grant an evidentiary hearing on his motion to

suppress.

IV. Sentencing

Francois argues and the government concedes that his

sentence on Counts 10-13 of the indictment was plainly erroneous

because the court used facts not found by the jury to impose a

sentence greater than the one-year statutory maximum provided in 18

U.S.C. § 1028(b)(6). See Cunningham v. California, 549 U.S. 270,

274-75 (2007) ("[T]he Federal Constitution's jury-trial guarantee

proscribes a sentencing scheme that allows a judge to impose a

sentence above the statutory maximum based on a fact . . . not

found by a jury or admitted by the defendant.").

For his convictions on Counts 10-13, the court sentenced

Francois to 140 months under 18 U.S.C. § 1028(b)(1), which requires

both a conviction under 18 U.S.C. § 1028(a) and a jury finding that

the violation involved the "production or transfer" of a false

identity document. But in this case, both the indictment and the 5

jury instructions asked the jury to determine only whether Francois

had "possessed" a false identity document with intent to defraud,

Counts 10-13 of the indictment charged Francois with 5

violating 18 U.S.C. § 1028(a)(4), which provides that anyone

"knowingly possess[ing] an identification document . . . or a false

identification document, with the intent such document or feature

be used to defraud the United States . . . shall be punished as

provided in subsection b of this section." 

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not whether he had produced or transferred that identity document. 

As such, we agree with the parties that imposing an enhanced

sentence under Section 1028(b)(1) was error. The statutory maximum

for these counts should have been the one-year statutory maximum

provided in Section 1028(b)(6), a catchall which applies to

violations of 18 U.S.C. § 1028(a)(4) where the jury makes no

additional findings that special circumstances were present.

The consequences of this error are significant. A brief

review of the "sentencing architecture" of Francois's sentence

demonstrates why vacating the sentence on Counts 10-13 will

undermine the entire sentencing structure crafted by the district

court. Francois was sentenced to concurrent sentences of 140

months each on Counts 10-13, 120 months each on Counts 1-4 and 6-9,

and 60 months on Count 5. He was also sentenced to 24 months each

on Counts 14-17, to run concurrently with each other but

consecutively with his sentences on Counts 1-13. In other words,

his sentence on Counts 14-17 required him to serve 24 months on top

of the longest term imposed for Counts 1-13 -- which was the 140

months for Counts 10-13 at issue here –- for a total of 164 months. 

Francois's 140-month sentence on Counts 10-13 was thus

central to the district court's calculation of Francois's overall

sentencing package. As such, we conclude that correcting this

error requires us to vacate his entire sentence and remand for

complete re-sentencing. See United States v. García-Ortiz, 657

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F.3d 25, 31 (1st Cir. 2011) ("When a defendant successfully

challenges one of several interdependent sentences, the proper

course often is to remand for resentencing on the other (nonvacated) counts."); United States v. Pimienta-Redondo, 874 F.2d 9,

14 (1st Cir. 1989) (en banc) ("[W]hen a defendant is found guilty

on a multicount indictment . . . [, and] the conviction on one

or more of the component counts is vacated, common sense dictates

that the judge should be free to review the efficacy of what

remains in light of the original plan, and to reconstruct the

sentencing architecture upon remand."); see also United States v.

Melvin, 27 F.3d 710, 712 (1st Cir. 1994) (noting that the precedent

in this Circuit establishes that "an appellate ruling invalidating

a sentence, or reversing on some, but not all, counts of an

indictment may implicate the trial judge's comprehensive,

interdependent imposition of a penalty and thus require

resentencing on all counts"). We make no judgment on the

appropriate outcome of the re-sentencing.

V. Conclusion

For the reasons explained above, we affirm Francois's

conviction, but vacate his original sentence and remand to the

district court for re-sentencing on all seventeen counts.

So ordered.

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